As the Yukon government seeks judicial review of a Yukon Environmental and Socio-economic Assessment Board (YESAB) decision on an exploration project in the Peel Watershed, they are offering more details on what led to this point. Representatives of the government maintain that it doesn’t have a position on whether this project should proceed but launched the judicial review to clarify the process.
The project in question, helicopter access mineral exploration on Silver 47 Exploration Corp.’s Michelle Creek claims, is the first project assessed by YESAB in the area managed by the Peel Watershed Regional Land Use Plan. The territorial government filed a court petition challenging the recommendation from YESAB’s Dawson office that the project not be allowed to proceed.
A media briefing held by the government on June 7 set out some of the finer points of the assessment process and how the court case may move forward.
Todd Powell, a representative of the Yukon’s Department of Energy Mines and Resources, offered more detail about how the application for the Michelle Creek project interacts with the Peel management plan. He explained that the Michelle Creek project straddles areas designated for conservation and development in the plan. He said developing existing claims in the conservation areas might be possible, subject to the requirements set out in the plan.
“At this point, I think it’s worth clarifying that the current government doesn’t have a position of whether this project should proceed. It’s not the outcome. It’s the process that we have in front of us that we’ve created this challenge over,” Powell said.
Elaborating somewhat on the territorial government’s grievance with the procedure in this case was I.H. Fraser, who will serve as the government’s legal counsel in this case.
“For the reasons outlined in the petition, the Government of Yukon doesn’t think the decision is in accordance with the act and the process it follows, and it hasn’t given the Government of Yukon a recommendation that it can properly decide to act on,” he said.
Fraser said the government wants the matter sent back to the YESAB designated office to fix defects, possibly with specific direction from the court. A judicial review application is the only way the government can do this.
“If the petition is successful, what will happen is the designated office will be asked to go back and take a look at those issues to acquire that data or explain why that data can’t be acquired and address that issue in a revised report and recommendations.”
According to Fraser, the issues here are not more complicated than in most judicial review cases. He doesn’t anticipate much argument about the facts or much procedural preamble before the matter can be heard in court.
This is the first time the government has sought judicial review of a YESAB decision, but Fraser said there is an “enormous” amount of case law from across Canada dealing with the judicial review that the court can draw on in making a decision.
“I have no doubt that various counsel will have different views on what that law directs a court to do. But it’s not a new area of law, it’s very well-established law. So counsel will be arguing over familiar ground to both counsel and the court.”
Kim Winnicky, YESAB’s executive director, said the board would not comment as the matter is before the courts.
The judicial review is back in court for a case management conference on June 27.
Contact Jim Elliot at jim.elliot@yukon-news.com
